Richard Falk: ‘Palestinians do not even have the right to have rights’

(Ma’an) The following is an excerpt from an interview originally published on ‘The Wall has Ears: Conversations for Palestine’ on Jan. 8, 2014. http://lemuradesoreilles.org/2014/01/08/the-palestinian…falk/Frank Barat is an activist based in Belgium and is one of the former coordinators of the Russell Tribunal on Palestine. He recently conducted an interview with Richard Falk for ‘The Wall has Ears: Conversations for Palestine.’

Richard Falk is the United Nations Special Rapporteur on Palestinian human rights and an American professor emeritus of international law at Princeton University.

I wanted to ask you about this article that you recently wrote on your blog, ‘Nelson Mandela’s Inspiration’. You mentioned that you met him 15 years ago in South Africa.

What impression did he leave on you and what does, in your opinion, his death means for South Africa and the rest of the world?

I was fortunate to have the opportunity to meet Nelson Mandela. He was asked to greet a commission on the future of the oceans of which I was a member. The vice chair of this commission was Kader Asmal, who had been a member of Mandela’s first cabinet and was also one of the authors of the South Africa constitution and a close friend of mine as well. He asked me if I could prepare some remarks for Mandela to welcome this commission, which I did.

Mandela used my text pretty much as I had written it. After the presentation, which was in the South African parliament, he came and talked to me and then to each of the members of the commission. I was very impressed in the sense that he was able to say something to each person from these 40 countries that was specific to their national situations.

As I tried to express in my blog, he had this quality of moral radiance, a sense of authenticity and a spiritual grounding that gave him a particular presence that was strong and unforgettable. His death has been an opportunity to take some account on what his life has meant and how it bore on so many issues, including the Palestinians, a facet that I am particularly interested in.

It is important to rescue the real Mandela from the one the liberal media has tried to project, which is one of reconciliation and nonviolence. Both of these characteristics were descriptive of his efforts to find a way to end South Africa apartheid without a bloody struggle but it should also be realized that he never really renounced the idea of violence if it seemed a necessary instrument for achieving liberation from a structure of oppression.

His main priority was what works in response to a particular condition of oppression. His release from prison was itself an effective demonstration that the global anti-apartheid campaign had forced the South African Afrikaner elite to re-calculate their interests and priorities. It was in that setting that he made this effort to find a solution to the conflict that would end political apartheid.

It was to some extent a Faustian bargain because the situation of the mass of Africans has not improved economically or socially since the transformation of the constitutional system, so not surprisingly, there is some resentment about the way in which the conflict was ended, among portions of the South African population.

The legacy is complicated by the fact that his successors as leaders did not really take on the job of creating a just society.

There is no question that it is a post apartheid society in a political sense but it still represents a society in which the white minority and an emergent tiny black elite dominate the economy and the mass of the people are still enduring many of the deprivations that were associated with apartheid itself.

You talked about the role of violence in emancipatory struggles for freedom. What does international law says about this?

As in many areas of international law, it can be interpreted from different perspectives. Still, there did emerge especially in the 1970s and 80s a general international law consensus that armed struggle in the course of national liberation from a colonial regime was a legitimate use of force.

It did not mean that all types of violence were legitimate and legal. It had to be violence directed towards an appropriate target.

International law never offered a way of sanitizing terrorist forms of actions directed at innocent civilians or protected targets such as hospitals or churches. Of course in many of the liberation struggles the violent instruments used did include random acts intending to disrupt colonial occupation and rule.

‘The Battle of Algiers,’ the famous film, shows acts of resistance including throwing bombs in a crowded cafe in Algiers. In this historical process, those that sided with the anti-colonial struggle have accepted such indiscriminate violence as justified in some circumstances of oppressive rule.

Defensive terrorism was also justified against the Nazi occupation of various European countries during WWII. Even those that uphold the legality of violence in wars of liberation do not go as far as to legitimize violence per se. Only violence against appropriate targets can claim the mantle of international law.

In 2001, you had to answer this question in the context of the Palestinian struggle during your term as the United Nation High Commissioner for Human Rights. What was your answer, or your findings at that time?

Again, one has to acknowledge that international law is not clear on this subject. There is no authoritative treaty or customary rule of international law or judicial determination that would resolve that question in a definitive way.

What I suggested was in a way similar to what I have been saying about Mandela’s view of violence and the relation of violence to wars of national liberation. An oppressed and embattled people possess what amounts to a right to self-defense; it not only governments that can invoke such a right.

When there is an oppressive set of circumstances there is an implicit right of self-defense or resistance on the part of a society. Such a right is limited to the use of violence against those who are associated with the oppressive structure.

This right has not been codified or authoritatively endorsed as states control the lawmaking process. Nevertheless, it seems to me that such a right is expressive of the living law of international society in relation to the collective rights of people.

Why do you think is this question about violence always asked to the oppressed, them being African Americans, Indian Americans, Palestinians, when actually most of the violence is perpetrated by the oppressor, being the US or Israel in this case?

I think it goes back to the notion of the modern state. The modern state, by many conventional definitions enjoys a monopoly over legitimate use of violence. Therefore, those that are not state actors and that resort to violence have to overcome a presumption of immorality and illegality attached to their behavior.

The state has the obligation to maintain social order, establishing a political environment in which violence is used only to maintain the established order. I think that distinction is very important in explaining popular media presentations of these conflicts. The terminology of terrorism is used usually only with reference to anti-state violence.

State violence is usually sanitized in various ways. Those of us that are not happy with this kind of discriminatory use of language speak about state terrorism.

But it’s a relatively unusual discourse about the nature of permissible and impermissible violence. Therefore it is important not to fall into that kind of statist trap by regarding state violence as presumptively legitimate and anti-state violence as presumptively illegitimate.